Defense Attorney Challenges Replacement of U.S. Attorneys
Kudos to TalkLeft contributer Last Night in Little Rock (aka John Wesley Hall of Little Rock, AR) for filing a motion challenging Alberto Gonzales' firing of U.S. Attorneys across the country and replacing them with political "appointees" who do not have to be confirmed by the Senate.
Hall was appointed by the court to represent a death penalty defendant last week and filed this motion (pdf) today. He argues that the "appointment" of U.S. Attorney Tim Griffin violates Art. II of the Constitution and Sec. 541 of Title 28 of the U.S. Code.
Why did Gonzales replace U.S. Attorney Bud Cummins with Griffin?
So far, seven U.S. Attorneys around the country have been fired and replaced by political appointees without confirmation by the Senate. The requirement was abolished by a provision in the Patriot Act that allows recess appointments.
The renewal of the USA PATRIOT Act, Public Law 109-177, 120 Stat. 246, Title V, § 502 (March 9, 2006), included the provision at issue here: 28 U.S.C. § 546©. The whole statute for context provides:
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
© A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.
Subsection (c-d) formerly read:
© A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district
appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection ©(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the
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